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SQE > Constitutional Administrative EU > Flashcards

Constitutional Administrative EU Flashcards

1
Q

What is “Uncodified constitution?”

A

No single definitive source

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2
Q

What are the main constitutional functions?

A
  • establish and identify the key institutions (L\G\J)
  • Outline their powers
  • Regulate relations between state/institutions/individuals
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3
Q

Sources of UK constitution

A
  • Act of Parliament
  • Common law
  • Constitutional convention
  • ECHR via HRA 1998
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4
Q

Principle of “Rule of law” means

A
  • Law applied fairly
  • Government acts according to the law
  • Law has no retrospective effect
  • No punishment w/o breach of the law
  • No person above the law
  • Law is accessible, clear and predictable
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5
Q

What is the highest form of law in UK?

A

Act of Parliament

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6
Q

Declaration of incompatibility can be applied to

A

Act of Parliament that allegedly incompatible with HRA 1998

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7
Q

Royal prerogative is

A

part of Common law, collection of powers belonging to the Crown (government, Executive)

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8
Q

Examples of constitutional conventions

A
  • Circumstances when ministers resign due to personal conduct
  • UK Parliament does not legislate on devolved matters (Scottish Welsh nIreland)
  • Monarch always acts on advice of PMinister
  • Government ministers will have seat in both Houses
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9
Q

How many jurisdiction in UK?

A

3 - Wales, Scotland, nIreland

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10
Q

Main constitutional principles

A
  • Separation of powers
  • Rule of law
  • Parliamentary sovereignty
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11
Q

Basic elements of Principle Parliamentary sovereignty

A
  • P makes/unmakes any laws
  • No one can set aside act of P
  • No parliament binds successors
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12
Q

What is Enrolled Bill rule?

A

Courts do not question validity of the law

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13
Q

What is Parliamentary privilege?

A

No responsibility for anything said in the Parliament

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14
Q

Parliament main functions

A
  • pass the law
  • keep government accountable
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15
Q

House of commons has…members

A

650

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16
Q

Speaker`s of House of commons main function

A

maintain the order during debates

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17
Q

Terms for the Parliament is…years

A

5

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18
Q

Can Monarch dissolve Parliament before end of 5 years term?

A

yes

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19
Q

Who cannot be MP

A
    • under 18
  • non Commonwealth (except Ireland)
  • Member of house of Lords
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20
Q

What is MP recall procedure

A

Conditions:
- if convicted an offence
- Suspended by HC for 10 days for misconduct
- false or misleading information related to expenses

Recall petition + 10% of electorate sign petition - recalled to constituency

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21
Q

King`s speech is

A

Speech in the beginning of each session of Parliament, outlining plans of Government

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22
Q

What is the usual sequence to pass a Bill

A

1st reading
2nd reading
Committee stage
Report stage
3rd reading
Consideration of amendments (ping-pong)
Royal assent

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23
Q

What are two forms of Committee exist?

A

-Public bill committee
- Whole house committee

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24
Q

what is Whole house`s committee role?

A

To consider controversial, urgent or 1st class constitutional importance bills

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25
Q

What is a difference between 1 2 3 readings?

A

1 - just introduction, 2 - first debates, 3 review before next house 1st reading

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26
Q

What is Salisbury convention?

A

House of lords will grant a second reading if the Bill is in course of elections

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27
Q

What is suspensory veto?

A

House of lords may block peace of legislation, but this veto can be avoided in next year session

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28
Q

What is commencement order?

A

Piece of Bill, secondary legislation, indicating wen it comes into force

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29
Q

What is secondary legislation?

A

Legislation made by Government. Also known as delegated, subordinate, regulations, statutory instruments

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30
Q

What are procedures to enact secondary legislation?

A

Negative resolution procedure
Affirmative resolution procedure

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31
Q

How many days draft should lay before both Houses for Negative resolution?

A

40

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32
Q

What is Affirmative resolution?

A

To be enacted, draft should be expressly voted by both houses.

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33
Q

What is Delegated legislation committee

A

Chamber in House o commons where secondary legislation can be debated

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34
Q

What is Henry VIII Powers

A

Power of government to amend primary legislation (minor amendments.

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35
Q

When secondary legislation can be struck down by the court?

A

When it goes beyond the powers granted to the government

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36
Q

Sub Judicie rule means

A

During debates in either houses it is forbidden to refer to ongoing case

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37
Q

Term Crown includes following

A

Monarch
Prime minister
ministers
government departments
civil servants

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38
Q

Who is Head of State in UK?

A

Monarch

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39
Q

Monarch is head of:

A

State (14 countries)
Armed forces
Church
Defender of Faith

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40
Q

Principles of Royal Prerogative

A
  • No new prerogative can be created
  • when overlap with Statute - statute prevails
  • prerogative cannot be used to Thwart intention of Parliament
  • cannot be used to change the law
  • statutes are not binding Crown unless expressly mentioned
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41
Q

Bill of Rights 1689 states that

A

Parliament is sovereign, Crown is not

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42
Q

Three major groups of prerogative powers

A

Ministerial
personal
Archaic (dolphins/swans)

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43
Q

Ministerial prerogative is to:

A
  • Acquire and cede territory
  • Conducting diplomacy
  • appointment of High Commissioners
  • Use of Armed forces, declaration of war
  • PM appoint and remove ministers
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44
Q

High Commissioner is

A

representative from countries of Commonwealth

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45
Q

Personal prerogative is

A
  • To appoint PM
  • To dismiss government
  • to prorogue Parliament
  • to dissolve Parliament
  • Ascent
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46
Q

legislative prerogative power is

A
  • to pass Orders in Council
  • granting Ascent
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47
Q

Judicial prerogative power is

A
  • granting pardon (criminal)
  • Judicial committee of Privy Council
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48
Q

Judicial committee of Privy Council is..

A

appeal body to hear appeals from Commonwealth. Formally approved at Privy council meeting

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49
Q

Examples of how Royal prerogative is regulated

A
  • Ratification of international treaties (Statute regulates)
  • Cardinal convention - monarch acts on PM advise (Convention regulation)
  • deployment of Armed forces (asks support of House of commons) (Convention regulation)
  • Monarch appoints PM (Convention regulation)
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50
Q

How International treaty becomes binding?

A

To be ratified by Parliament;
- to be laid before Parliament 21 days
- 21 days passed, no vote against - G can ratify
- if vote against - explain and another 21 days (Lords excluded)
- exceptional cases - bypass Parliament

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51
Q

How many days Treaty to be lad before Parliament for ratification

A

21

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52
Q

What is Cardinal convention

A

Monarch always acts on PM advice, even if disagrees

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53
Q

Hung Parliament means

A

after election does not result in majority of one party

54
Q

Secretaries of State are

A

Most senior ministers

55
Q

Prime minister`s main responsibilities

A
  • Organization of Government and Civil service
  • Constitutional advisor to Monarch, responsible for relation with devolved governments
  • Security and Intelligence matters
  • Armed forced
  • International relations
56
Q

Matters expected to go to Cabinet

A
  • Decision on military action
  • determining government`s legislative agenda
  • issues of constitutional nature
  • significant domestic policy matters
  • significant European or international affairs
  • emergencies, terrorism
57
Q

Carltona doctrine means

A

If Parliament grants power to minister, it is clear that power will be exercised by civils

58
Q

Key elements of G collective responsibility

A
  • confidentiality
  • unanimity
59
Q

Minister`s individual responsibility in substance is:

A
  • Not to mislead Parliament (either correct or, if knowingly - resign)
  • Responsibility and accountability to Parliament for department
  • Private conduct (Ministerial Code)
60
Q

Distinction between being accountable and being responsible

A

Operational failure - accountable - fix
Policy failure (general failure to deliver policy) - responsible - resignation

61
Q

What are the 3 aspects (levels) of ministers` accountability

A
  • Collective responsibility
  • Private responsibility
  • Accountability to Parliament
62
Q

Ministers` accountability to Parliament results in:

A
  • PM question time
  • Ministerial questions
  • Opposition business
  • Urgent questions
  • select Committees
63
Q

Which questions cannot be asked during ministerial questions?

A
  • about Monarch
  • about local authorities
  • affairs of other countries
  • devolved matters
  • case in court
64
Q

What devolved institutions exist?

A
  • Scottish Parliament and Government
  • Welsh Parliament and Government
  • nIreland Assembly and Executive
65
Q

What is required to cancel devolved institutions?

A

Scotish and Welsh - Parliament + referendum

66
Q

Sewel convention is

A

Parliament normally asks Legislative consent motion before legislating on devolved matters

67
Q

Devolved legislation can be stroke down if

A
  • made outside devolved powers
  • made contrary to ECHR
68
Q

Who refers bill to Supreme court for nIreland

A
  • Advocate general
  • Attorney general
69
Q

Who refers bill to Supreme court for Scotland

A
  • Advocate general
  • Attorney general
  • Lord Advocate
70
Q

Who refers bill to Supreme court for Wales

A
  • Attorney general
  • Counsel general
71
Q

Judicial review is

A

Court can review and scrutinize actions of executive

72
Q

What are main 3 questions court should answer before/during the case

A
  1. If application meets requirement
  2. What are the grounds
  3. Appropriate remedy
73
Q

Requirements for judicial review:

A
  1. Claim against Public body
  2. Correct procedure during application was used
  3. Are there grounds for refusal based on NO substantial change of outcome
  4. Time limits for application observed
  5. Is issue reviewable (not hypothetic)
  6. Issue is not on factual merits
  7. Claimant has standing
  8. Court is last resort
74
Q

Name correct procedures of judicial review

A
  • Pre-action protocol
  • Permission stage
75
Q

What is pre-action protocol?

A

In judicial review claimant has to send the letter to defendant, and defendant responds in 14days

76
Q

What are the time limits to submit for judicial review

A

Promptly!
3 months - general
6 weeks - planning decision

77
Q

What means having standing in judicial review

A

Claimant has sufficient interest -is directly impacted

78
Q

Types of grounds for judicial review

A
  • Illegality
  • procedural impropriety
  • unreasonableness (red hair)
  • breach of legitimate expectations
79
Q

Illegality as ground for judicial review includes:

A
  • Error of law
  • Failure on Specific legal duty (i.a. Duty of Equality)
  • Unlawful delegation of powers
  • Irrelevant considerations
  • Ultra vires (out of power)
80
Q

Ouster clauses means

A

clauses in statutes stating that decision of executive cannot be challenged. Lawful - cannot

81
Q

Grounds (violations) for procedural impropriety

A
  • Mandatory/Directory requirements (must/shall)
  • Right to be heard (when removing right)
  • Rule against bias
  • Duty to consult
  • Duty to give reasons
82
Q

What is automatic disqualification Rule?

A

When state body`s representative had financial interest (bias), or non-financial but closely attached to the case

83
Q

Types of duties to consult

A
  • statutory
  • promised
  • established practice
  • failure will lead to unfairness
84
Q

Legitimate expectation is

A

Expectation that state body will act as it promised or it always acted

85
Q

Types of remedies available:

A
  • Quashing order
  • Mandatory order
  • Prohibiting order
  • Injunction
  • Declaration
86
Q

3 Types of right under HRA 1998

A
  • Absolute
  • limited
  • qualified
87
Q

Name absolute rights under HRA 1998

A
  • To life
  • no Torture
  • no Slavery
  • no retrospective in Criminal
88
Q

Name limited rights under HRA 1998

A
  • Liberty and security
  • Fair trial
89
Q

Name qualified rights under HRA 1998

A
  • respect of private life
  • thought and religion
  • Expression
  • Assembly
  • Marry
  • no discrimination
  • property
  • education
  • elections
  • no death penalty
90
Q

Cases when limited rights can be limited:

A
  • detention convicted in criminal
  • arrest/detention those failed with court order
  • arrest/detention reasonably suspected crime / prevent
  • prevent spreading virus
91
Q

Test to define if qualified right can be limited:

A
  1. Aim to limit is important
  2. Measures are designed to meet aim
  3. Interference is no more necessary to accomplish aim
  4. Measure is reasonable and balanced (not excessive)
92
Q

Explain concept of Margin of appreciation

A

It is a Limit of country`s discretion. If there is common approach among states - signatories of ECHR on how to act in issue, ECtHR will apply narrow margin.

93
Q

What means Living instrument principle of ECHR

A
  • ECtHR is free to depart of its decisions
  • ECtHR can choose to follow the approach of any state
94
Q

Which rights (HRA) can be derogated (ignored) and when

A

only Limited and qualified, in case of war

95
Q

What is the mirror principle in context of HRA 1998

A

UK courts must
- take into account any judgement of ECtHR,
- take the approach that reflects the decision of ECtHR
- interpret legislation as interpreted by ECtHR

96
Q

If Act is non-compliant with ECtHR, how to fix?

A

To correct via standard procedure. Or via secondary legislation (remedial order, becomes law if approved both after 60 days),

If urgent - immediately comes into effect but lose power if not approved 120 days

97
Q

Which public authority cannot be sued under HRA 1998

A
  • Parliament (both Houses)
  • any authority if it could not act any differently
98
Q

What is Victim test?

A

It means that claim under HRA 1998 can be brought only by directly affected

99
Q

What is the specifics of the claim Freedom from discrimination under HRA 1998?

A

Cannot be sole ground, only connected with other

100
Q

What is limitation period to submit claim under HRA 1998

A

1 year

101
Q

Under which act one can bring claim against discriminations against non-public authority

A

Equality act 2010

102
Q

Difference between HRA and Equality act?

A

Discriminations can be freestanding ground

103
Q

What is “Kings peace”

A

Duty of police officers prevent breaches of peace

104
Q

What “breach of piece” means

A

people should do their business in ordinary way without interference. Public and private place

105
Q

3 situations when breach of piece occurs:

A
  • person is genuinely in fear of harm
  • Harm has been done
  • Harm is likely to be done
106
Q

Which 2 steps can be done by police officer in relation to breach of piece

A
  • Any steps to terminate
  • any steps to prevent
107
Q

What “Harm likely to be done” means

A

Harm cannot be avoided (imminent)

108
Q

How many days notice required for Public procession

A

6

109
Q

What should be mentioned in the notice for Public procession

A
  • date
  • time
  • route
  • name of person
110
Q

When conditions on procession can be imposed?

A
  • public disorder
  • damage of property
  • disruption of life
  • generate noise
111
Q

Serious disruption of life to impose condition on procession means

A
  • delivery delay of sensitive products
  • disruption of access to essential products:
  • money food water
  • communication
  • education
  • health
112
Q

Maximum term of ban on procession is

A

3 months

113
Q

Ban for procession should be applied to

A
  • local council
  • Home secretary (London, Greater london)
114
Q

How many people required for Public assembly

A

2

115
Q

Conditions to consider Trespassory Assembly

A
  • 20+ people
  • Land no/limited access to public
  • no permission of occupier
  • serious disruption
116
Q

Police can stop anyone they believe will join banned..

A

Trespassory assembly

117
Q

4 freedoms of EU are free movement of

A

People
Capital
Goods
Services

118
Q

What is the only source of EU law?

A

Treaties

119
Q

EU secondary legislation is

A
  • Regulations
  • Directives
120
Q

What had supremacy (before Brexit) UK or EU law

A

EU law

121
Q

Two requirements for EU law to have direct effect

A
  • clear and precise
  • unconditional
122
Q

Validity of legislation passed before or after 1972 (UK joined EU)

A

Valid to extent it complied with EU law

123
Q

UK joined EU
UK left EU

A

1972
2020 (31 Jan)

124
Q

Transition period in Brexit was by

A

31 Dec 2020

125
Q

Types and description of Retained EU law

A
  1. EU-derived domestic (all UK secondary/primary to implement EU Directives)
  2. Direct EU legislation (EU Regulations)
  3. Directly effective (Treaty provisions)
126
Q

What has supremacy (in case of conflict): Retained EU law or UK law?

A

If UK law was passed before the end of Transition, EU law prevails

127
Q

What has supremacy (in case of conflict): Withdrawal agreement or UK law?

A

If any provision of UK law is inconsistent with Withdrawal agreement, provision will be disapplied

128
Q

How UK courts treat CJEU decisions made before/after Transition period

A

Before: it is Retained case law
After: not bound

129
Q

Retained EU case law is binding to

A

all court, save for Supreme Court and Court of Appeal

130
Q

Supreme Court and Court of appeal can depart from retained EU case law

A

under same condition they depart from own decisions - when it appears right to do so.

131
Q

Who has power to correct deficiencies in Retained EU law

A

Government, via secondary legislation

132
Q

What are the limitation of power to correct deficiencies

A
  • increase taxes
  • retrospective provision
  • create criminal offence
  • made after 2022

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